By Laura Smith-Ulrich

Laura Smith-Ulrich is an Assitant Editor at Atheltic Management.

It's the Monday morning phone call every athletic director dreads: Over the weekend, some of your students-athletes got into trouble. Last January, it was Helena (Mont.) High School Activities Director Jim Opitz's turn to get the unwelcome news. Several Helena basketball players had attended a party where alcohol was served to minors, the police had been called, and minor-in-possession charges had been filed.

Although not all the athletes drank, they did stay at the party--a violation of Helena's student-athlete code of conduct. So Opitz handed down suspensions.

And then he received a phone call that might be even more dreaded: Angry over the punishments, parents told Opitz they were suing to get their kids back on the basketball court. And they succeeded--a judge ultimately ruled that Helena High School was violating the students' rights and ordered the school to lift the suspensions.

Opitz is not alone in having his conduct code decisions overruled by a court of law. In recent years, judges nationwide have been reinstating more and more high school and college athletes after conduct code violations, usually to the shock of administrators.

"Codes of conduct and their enforceability represent a critical issue for athletic directors right now," says Jim Livengood, Athletic Director at the University of Arizona. "We live in fear that we're going to discipline an athlete and then have a court come in and say, 'You can't do that.'"

In response, many athletic administrators are looking closely at the legality of their codes and how to avoid being challenged over them in court. They are learning the nuances of due process and what acting "arbitrarily and capriciously" means. They're also figuring out how to best communicate their codes, so that athletes and parents embrace the concept instead of fighting it.

LEGAL BASICS
The first reaction many administrators have when faced with a lawsuit over conduct codes is disbelief. Because playing sports is normally considered a privilege, not a right, most assume they can write and enforce codes almost any way they see fit. And in theory, they can, explains Ronna Greff Schneider, Professor at the University of Cincinnati's College of Law and a specialist in education law.

When a right is protected under the U.S. Constitution, Greff Schneider explains, it is illegal to take it away without due process, which means giving the person notice of the complaint against them and an opportunity to respond. "Because extracurricular participation isn't such a right, under federal law, a school can simply suspend an athlete who breaks its conduct code without any due process at all," she says.

However, Greff Schneider cautions, athletes may be entitled to additional due process protections beyond those of the federal Constitution. "Each state has its own constitution, and there may be state laws, county laws, or school district rules that apply," she says. "It's essential to investigate and understand the laws for your individual situation, because it's likely that some additional due process does apply."

The right to due process can come from many sources--even a school's own athletic code of conduct can establish legally binding rules. For example, if a school's code states that it will provide offenders with a letter describing their infraction, and the school fails to provide that letter, a judge could rule that the school failed to follow its own due process.

Lawyers representing suspended athletes can also argue that a school has acted arbitrarily or capriciously in enforcing its code. This strategy usually involves a claim that the school applied the code inconsistently, punishing athletes differently for the same infraction. "If the lawyer for a suspended athlete can point to a time when you did not suspend someone else for the same violation, they can argue that you acted arbitrarily or capriciously," Greff Schneider says. "That can lead to a judge overturning your suspension."

RECENT CASES
How have these legal basics played out in court recently? Unfortunately, judges' rulings have sometimes seemed arbitrary themselves, so they may provide more questions than answers. Four recent cases shed some light on the trends:

Warwick (N.Y.) Valley High School: At Warwick, three football players and one soccer player violated provisions in the school's athlete conduct code and were suspended from multiple games. Parents appealed the decision through the school, and Dr. Frank Greenhall, Superintendent of the Warwick Valley Central School District, met with them in person. "I proposed punishments involving community service, suspension, and drug or alcohol counseling," Greenhall says. "They accepted, signed an agreement, and the athletes began serving their new penalties."

Then, while still serving his suspension, one of the athletes had an altercation with school personnel, and his coach threw him off the team. For the athlete, this was a blow to his hopes for a college scholarship, so his parents sued. A U.S. District Court judge ruled in favor of the athlete, issuing a temporary order placing him back on the field. In his decision, Judge Stephen Robinson said that Warwick had failed to follow due process by not adequately informing the athlete of why he was removed from the team.

"We had put the initial charges in writing, but the court said we also needed to put the new infraction in writing. Otherwise, it could be assumed that the agreed-to penalty covered that as well," Greenhall says. "We did not feel due process was necessary for athletics, and another judge may have ruled differently. But from now on, we are going to follow due process with every athlete. You can always err on the side of caution, and that's what we learned from this."

Also in his decision, Judge Robinson wrote that the athlete's potential college scholarship could be considered protected property under the law. Robinson found that the school's failure to follow due process resulted in a violation of the athlete's property rights--specifically, the right to be seen by college coaches who may give him a scholarship. According to Greff Schneider, there is enough case law in favor of athletes' rights to be seen by recruiters to indicate this is a legitimate concern. "The argument some judges have made is that athletics are really important for steering kids out of trouble, and anything that helps them get into college is a good thing," she says.

However, it's important to remember that even if a property right exists, schools can still enforce their codes as long as they follow due process. In the Warwick case, lack of due process was what tipped the scales in the athlete's favor.

Georgia Tech: In late 2005, Georgia Tech football player Reuben Houston was suspended from school and the football team after he was charged with drug trafficking. But a Fulton County judge ordered the school to take Houston back, and the athletic department to put him back on the team, claiming the school had acted arbitrarily and capriciously.

At the time, Dave Braine, then Athletic Director at Georgia Tech, called the judge's decision a catastrophe for college athletics. "I feel compelled to say that this decision will send shock waves through college athletic programs around the country," Braine told USA Today. "Playing college football ... is a privilege, not a right. We must be able to set standards of conduct for our student-athletes, and we must be able to enforce and maintain discipline."

More than a year later, the judge's decision was reversed on appeal, as the Court of Appeals of Georgia reinstated the suspension. And while the decision will have no impact on Houston, who now plays in the NFL, it should provide comfort for athletic departments nationwide, particularly because of the reasoning the court used in its decision.

"The appeals court essentially said that the initial court never should have heard the athlete's case," says Gary Wolovick, Senior Attorney in the Office of Legal Affairs at Georgia Tech. "The court recognized that academic institutions must have the right to set rules and make decisions about their codes of conduct. The court said unless a student can show that they are suffering major deprivation as a result of the suspension, courts should not even get involved in these cases. And suspension from a football team is not considered major deprivation. This case sets a huge precedent."

"For those of us in the trenches, the Houston decision is really reassuring because it reaffirms our right to hold athletes accountable," says Livengood. "And that's a good thing, because enforcing a code of conduct is one of the most challenging things we do as administrators."

Helena High School: Part of the conduct code at Helena High School said athletes would be punished if they attended a party where alcohol was served to minors, even if they didn't drink themselves. When Opitz handed down similar punishments to athletes who didn't drink and those who did, parents decided to sue. "We treated the players who were simply there the same as those who were charged," says Opitz, "because under our code's gathering clause, if you were there, you're as guilty as the kid who got drunk."

However, a judge ruled that this policy violated student-athletes' constitutional rights, which provide a protected freedom of association. Lawyers successfully argued that it was illegal to punish students simply for being at a party.

Opitz believes two factors played into the court's decision. First, Montana's state constitution leans more toward recognizing extracurricular activities as part of a student's protected right to an education. "We were surprised when we found out sports were a right in our state--we hadn't realized that," Opitz says. "That raises the bar for due process for us."

Second, the players' lawyers alleged that not all non-drinking athletes were actually punished, raising doubts about the school's fair enforcement of its code and opening the door for the "arbitrary and capricious" argument. An appeal is still possible in the case, but for now, Helena's board of education has decided to abandon the gathering clause in the code and simply focus on punishing those who definitely break the substance-use rules.

"In some ways, we felt the gathering clause put us in a no-win situation anyway," Opitz says. "We were becoming like FBI agents, trying to determine who left and when they left and how long they were there. There was also a sense that we were punishing the kids who were honest about what they were doing, while the kids who lied were getting away."

The decision in Montana wasn't necessarily typical--many courts have upheld gathering clauses. Ultimately, it's up to each athletic department to determine whether a gathering clause is worthwhile. "I believe that in most jurisdictions, such a clause would be upheld," says Greff Schneider. "But whenever you're looking at something that is not very clearly decided, you need to evaluate whether it's worth the risk of being sued."

Joseph High School: Joseph (Ore.) High School's code of conduct has a "good citizenship clause" that says athletes should "conduct themselves in a manner which reflects the high standards and ideals of their team, school, and community" and adds that "violations of conduct which are unbecoming of an athlete and are not specifically listed in these regulations may lead to disciplinary action up to and including suspension or removal from the team." This code came into question last May, when athletes from the school drove to an opposing team's hotel, slashed the tires on the team's van, and spray-painted racial slurs on the vehicle.

Two of the players did not participate in the vandalism, but they watched, rode in the car with the others, and failed to report the incident. The school ruled that by standing by and not reporting the crime, the athletes violated the good citizenship clause, and they were each suspended for three games. One of the players accepted the suspension, but the other sued the district.

"When we went before the judge, we argued that we hold our student-athletes to a higher standard than non-athletes because they are very visible in the community and they are role models for younger kids," says Rich Cohn-Lee, an attorney with the Oregon City-based Hungerford Law Firm, which specializes in education law and represented the Joseph School District. "We expect more from them than to stand by and do nothing."

The judge agreed with the school and upheld the suspension. "There are numerous cases where judges have ruled that concepts like good citizenship are specific enough to be constitutional," Cohn-Lee says. "As long as the school is applying the clause consistently, it's well within the law."

BEST PRACTICES
Along with understanding some of the legal trends, staying out of court requires reviewing the specific protocols for your code of conduct, making sure you can answer the questions judges will ask if there's ever a challenge. This means having a code that covers all the bases.

Get The Details Right: A key to following due process is having explicit details and strictly adhering to them. "I stress to my coaches the importance of putting each step they take in writing when an infraction occurs," Livengood says. "In my experience, it's when that documentation isn't there that things go awry."

Cohn-Lee suggests going one step further. "In addition to writing things down, take somebody else, perhaps your building principal, into meetings with the athlete and parents," he says. "That way, if there is a legal hearing, you can back each other up. You don't want to go it alone."

Greenhall is paying more attention to documentation as well. Since the court case, Warwick has updated its code of conduct and it now stipulates that all penalties for breaking the code be put into writing and addressed in person with violators and their parents. In addition, each discipline agreement specifies that it only pertains to a single incident, not anything that occurs before or after.

"I have done the agreements with eight athletes and their parents since the court case," Greenhall says. "All of the athletes have completed their penalties and the parents were very happy with the process."

"In most cases, if parents are apprised early on when their child has done something wrong, and they are brought into the process to sit down and talk, the situation can be defused without a lawsuit," says Cohn-Lee. "It doesn't always happen, but my experience is that when districts communicate well with parents, they will usually back school decisions."

"It's also the little things," Livengood says. "If our policy says we're going to have a hearing within 20 days of the infraction, we'd better not wait 21 days. Smart attorneys make a living on mistakes like that, because they can tell the athlete, 'Your rights weren't upheld and I can help you.' And frankly, student-athletes are going to consider it, because when something goes wrong and someone tells you they can make it better, you listen."

Update Often: One of the best things an athletic department can do to protect itself is regularly review its code of conduct to keep it in line with current case law and the pulse of the institution and community. "We review our code every year over the summer, and we have made more changes to it in the past three years than in the previous decade," says Livengood. "These are changing times and the document has to change, too."

In September, when two men's basketball players at the University of Alaska-Fairbanks were charged with multiple counts of burglary and theft, Athletic Director Forrest Karr quickly realized the school had no policy for handling a criminal matter. "When our situation occurred, rumors were flying and I had reporters calling me immediately, when it was still very unclear what had happened," Karr says. "They were asking how we were going to deal with the athletes, and those were very difficult questions to answer."

UAF updated its code immediately, involving in the discussion its Intercollegiate Athletics Council, faculty athletics representative, university administrators, student-athletes, and general counsel. It now has in place a concise document outlining what it will do when athletes face criminal charges. Under the new procedure, athletes charged with serious crimes will be immediately suspended from their team pending a factual inquiry. The athlete remains eligible for financial aid, sports medicine services, and academic support services. The procedure spells out a range of actions the department can take after a review from the director of judicial services is completed, from full reinstatement to dismissal from the team.

Keep It Flexible: Several athletic directors advise leaving room for discretion in your codes, so you can fit your response to individual athletes' cases. Tim Weiser, Athletic Director at Kansas State University, suggests leaving latitude not only in the behavioral expectations your code spells out, but also in the sanctions applied to athletes who break the code.

"It's extremely important to be able to look at each situation on its own merits," says Weiser, who this season dealt with a conduct code violation and suspension of high-profile basketball player Cartier Martin. "My advice would be to make sure you include language that gives you some flexibility and discretion. Over the years, I have seen instances where giving a student-athlete a second chance was absolutely appropriate and times when it wasn't. And we want to make the decision that best serves the underlying mission of a conduct code--to teach our young people how to act with integrity, learn from their mistakes, and leave our institution prepared to be better citizens."

EVERYONE ON BOARD
Another aspect of making your code effective is getting buy-in from athletes and parents. Here are some tips:

Good Communication: "You need to communicate your code to parents and athletes before anything goes wrong," Cohn-Lee says. "That means sitting down each season and explaining the expectations. Using examples is particularly helpful, and remember to point out that just because something isn't explicitly mentioned in the code doesn't mean it's not prohibited. When there is a problem, parents will be far more likely to back you up if they understood and agreed to the code from the beginning."

Livengood cautions that administrators need to be active in the communication process, not just depend on coaches to spread the word. "I personally talk to teams frequently, and so does my staff," he says. "We believe the message needs to come from the top."

Coaches In the Loop: Getting coaches' buy-in is critical. "Student-athlete conduct is something I discuss at every monthly meeting with my coaches," Livengood says. "I'll choose a different area to talk about, hitting more frequently on trouble spots. For instance, with hazing, does every coach understand exactly what hazing is and where we stand on it? Do they have any questions about it? When something comes from a coach, athletes' ears tend to perk up. So it's crucial that they're sending the same message I am."

Also key is getting coaches to stand behind you when an incident occurs. "Let's say an athletic director suspends a player right before a big game, and the coach doesn't support the decision," says Larry Johnson, Athletic Director at Joseph (Ore.) High School. "The coach needs to express his concerns to the athletic director in private. If he's telling the athlete's parents he disagrees with the ruling, that drastically increases the odds of them filing a suit, because they feel like someone in authority believes their child has been wronged. If the coach says, 'It's right there in our code of conduct, and I support our athletic director's decision,' that almost always keeps parents from challenging it."

Reach Team Leaders: Getting student-athletes to support the code starts with winning over each team's natural leaders. "We tell our team leaders that nothing can kill chemistry and destroy a team faster than conduct code problems," Livengood says. "If some kids on the team are breaking the rules, everyone knows it. And if they are not being held accountable, those who are following the rules become very resentful, leading to fractures on the team. So we tell our team leaders that, if for no other reason than their won-loss record, they need to run a tight ship.

"And remember, team leaders are not always the athletes designated as captains," Livengood continues. "Teams choose their leaders for all kinds of reasons, and it's up to us to identify and work closely with those athletes."

Livengood also gets student-athlete buy-in by asking for their input on the code. "We work extensively with our student-athlete advisory board when we review our code," Livengood says. "Being in on the discussions gives them a chance to really understand why the rules are the way they are, and that's a message they take back to their peers."

BE PREPARED
For Livengood, 2006-07 has thus far been a good year for conduct code compliance. But that doesn't mean he's letting down his guard on the issue of student-athlete behavior. "The good news is, so far I haven't had to deal with very many infractions," he says. "The bad news is, the next phone call or letter that comes across my desk could be from a coach or a lawyer, telling me that we've got a problem. That's why this is such a critical issue to keep focused on.

"I used to say, 'These are interesting times we're heading into,' but now I say, 'We're already there,'" Livengood continues. "And nowhere is that more obvious than with conduct codes. It's a tough topic to get your arms around, but the key is to keep working on it and not get complacent. We all need to work hard to avoid the scenarios where athletes' penalties are dismissed because we didn't follow our own procedures. Everybody loses when that happens--the institution, the team, and the athlete. "

Sidebar: TEAM CODES
How much leeway should athletic directors give coaches in setting and enforcing team codes of conduct? Does having different teams operating under different policies open you up to legal liability?

In general, the best course for high school athletic directors is to have one uniform code of conduct for all student-athletes, while allowing coaches to go above and beyond what the code requires in certain areas. "We have a department-wide code that covers a huge array of things, including drinking, drug use, and general conduct," says Larry Johnson, Athletic Director at Joseph (Ore.) High School. "If my coaches want to require more of their athletes academically or they want to impose a curfew, we allow that. But they can never make rules that are more lenient than the ones in our department-wide code."

At the college level, however, the equation tends to work the other way. Most department-wide codes are minimal, and coaches are allowed to set their own rules and penalties with some oversight from administrators. That approach has worked well for Tim Weiser, Athletic Director at Kansas State University. "We have a foundational code for the whole department, but I have learned that trying to force something onto college coaches that they don't agree with will often fail," he says. "All of our head coaches create their own team rules, which they review each year with the administrator assigned to their sport."

At the University of Arizona, on the other hand, Athletic Director Jim Livengood has put into place a department-wide code of conduct that is broader and leaves less to coaches' discretion. The policy has eight sections, covering everything from drug and alcohol use, to hazing, to the content of athletes' Facebook.com pages.

"It's unusual at the college level, but for us, it has worked very well," Livengood says. "Our coaches are given latitude to go beyond our rules, but they appreciate having a concrete code that our whole department follows. It provides us with a document as an entire department that says what we stand for and how we will conduct ourselves."